Section 1396.4b - General rule making; health and safety(a) Except as otherwise provided hereunder, and subject to the provisions of section 4(a)(2) L. all surface mining operations coming within the provisions of this act shall be under the exclusive jurisdiction of the department and shall be conducted in compliance with such reasonable rules and regulations as may be deemed necessary by the department for the fulfillment of the purposes, and provisions of this act, and other acts where applicable, including, but not limited to the act of July 17, 1961 (P.L. 659, No. 339), known as the "Pennsylvania Bituminous Coal Mine Act," and the act of November 10, 1965 (P.L. 721, No. 346), known as the "Pennsylvania Anthracite Coal Mine Act," for the health and safety of those persons engaged in the work and for the protection of the general public. The department through the mine conservation inspectors shall have the authority and power to enforce the provisions of this act and the rules and regulations promulgated thereunder by him. In addition, should the secretary determine that a condition caused by or related to surface mining constitutes a hazard to public health or safety, he shall take such measures to abate and remove the same as are provided by section 1917-A of the act of April 9, 1929 (P.L. 177, No. 175), known as "The Administrative Code of 1929," and as otherwise provided by law for the abatement of nuisances. For the purposes of this section, any condition which creates a risk of fire, landslide, subsidence, cave-in or other unsafe, dangerous or hazardous condition, including but not limited to any unguarded and unfenced open pit area, highwall, water pool, spoil bank and culm bank, abandoned structure, equipment, machinery, tools or other property used in or resulting from surface mining operations, or other serious hazards to public health or safety, is hereby declared to be a nuisance within the meaning of section 1917-A of "The Administrative Code of 1929."(b) The use of explosives for the purpose of blasting in connection with surface mining shall be done in accordance with regulations promulgated by and under the supervision of the secretary. These regulations shall include but not be limited to provisions relating to public notice, blasting schedules, monitoring and record-keeping, prevention of injury, prevention of damage to property outside the permit area, prevention of adverse impacts upon any underground mine, prevention of any change in the course, channel, or availability of ground or surface water outside the permit area, pre-blast surveys and certification of blasting personnel. Precautions shall be taken when blasting in close proximity to any underground mine. Blasting shall be conducted in such a manner as to protect the health and safety of persons working underground or to prevent any adverse impact upon an active, inactive or abandoned underground mine. It shall be unlawful for any blaster to leave a working place after a task completion without first filing a report with the mine operator known as a blaster's report. Such report shall indicate the nature of the blasting operation, including, but not limited to, the type and amount of explosives used.(c) From the effective date of this act, as amended hereby, no operator shall conduct surface mining operations (other than borrow pits for highway construction purposes) within one hundred feet of the outside line of the right-of-way of any public highway or within three hundred feet of any occupied dwelling, unless released by the owner thereof, nor within three hundred feet of any public building, public park, school, church, community or institutional building or within one hundred feet of any cemetery. The secretary may grant operators variances to the distance requirements herein established where he is satisfied that special circumstances warrant such exceptions and that the interest of the public and landowners affected thereby will be adequately protected. Prior to granting any such variances, the operator shall be required to give public notice of his application therefor in two newspapers of general circulation in the area once a week for two successive weeks. Should any person file an exception to the proposed variance within twenty days of the last publication thereof, the department shall conduct a public hearing with respect thereto.(d) Upon the completion of any surface mining operation, and prior to the release by the secretary of all or any portion of the bond or collateral pertinent thereto, the operator shall remove and clean up all temporary or unused structures, facilities, equipment, machines, tools, parts or other materials, property, debris or junk which were used in or resulted from his surface mining operations.(e) Nothing contained in this act shall be construed to prohibit the relocation of any public road in the manner provided by law.(f)(1) Any surface mining operator or any person engaged in government-financed reclamation who affects a public or private water supply by contamination or diminution shall restore or replace the affected supply with an alternate source of water adequate in quantity and quality for the purposes served by the supply. If any operator shall fail to comply with this provision, the secretary may issue such orders to the operator as are necessary to assure compliance.(2) It shall be presumed, as a matter of law, that a surface mine operator or owner is responsible without proof of fault, negligence or causation for all pollution, except bacteriological contamination, or diminution of public or private water supplies within one thousand (1,000) linear feet of the boundaries of the areas bonded and affected by coal mining operations, areas of overburden removal and storage and support areas except for haul and access roads. If surface mining activities are conducted on areas which are not permitted and bonded, this presumption applies to all water supplies within one thousand (1,000) linear feet of the land affected by such operations. There shall be only five defenses to the presumption of liability provided in this clause. A mine owner or operator must affirmatively prove by a preponderance of evidence that one of the following conditions exists:(i) The landowner or water supply company refused to allow the surface mining operator or owner access to conduct a survey prior to commencing mining activities.(ii) The water supply is not within one thousand (1,000) linear feet of the boundaries of the areas bonded and affected by coal mining operations, areas of overburden removal and storage and support areas except for haul and access roads.(iii) The pollution or diminution existed prior to the surface mining activities as determined by a survey conducted prior to commencing surface mining activities.(iv) The pollution or diminution occurred as a result of some cause other than the surface mining activities.(v) The landowner, water supply user or water supply company refused to allow the surface mining operator or owner access to determine the cause of pollution or diminution or to replace or restore the water supply.(3) If the secretary finds that immediate replacement of an affected water supply used for potable or domestic needs is required to protect public health or safety and the owner or operator has appealed or failed to comply with an order issued pursuant to this subsection, the secretary may restore or replace the affected water supply with an alternative source of water-utilizing moneys from the Surface Mining Conservation and Reclamation Fund. The secretary shall recover the costs of restoration or replacement, including costs incurred for design and construction of facilities, from the responsible owners or operators. Costs recovered shall be deposited in the Surface Mining Conservation and Reclamation Fund.(4) An operator or owner aggrieved by the secretary's order issued pursuant to this subsection shall have the right within thirty (30) days of receipt of the order to appeal to the Environmental Hearing Board. The secretary's order, when appealed by the operator or owner, shall not be used to block the issuance of new permits or the release of bonds when a stage of reclamation work is completed. Hearings under this subsection shall be in accordance with the act of July 13, 1988 (P.L. 530, No. 94) , known as the "Environmental Hearing Board Act," and 2 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of Commonwealth agencies) and Ch. 7 Subch. A (relating to judicial review of Commonwealth agency action).(5) Repealed by 2000, Dec. 20, P.L. 980, No. 138, § 2, effective in 60 days.(6) Nothing in this subsection shall prevent any landowner or water supply company who claims pollution or diminution of a water supply from seeking any other remedy that may be provided for at law or in equity.(7) A surface mining operation conducted under a surface mining permit issued by the department before the effective date of this act shall not be subject to the provisions of clauses (2), (3), (4), (5) and (6), but shall be subject to clause (1).(g) In implementing and enforcing this act and in promulgating rules and regulations issued pursuant to this act, the department shall consider the differences among mining of bituminous coal, anthracite coal and noncoal minerals and issue separate regulations for each.(h) The Environmental Quality Board is authorized to promulgate rules and regulations, the general purpose of which shall be the establishment of a remining and reclamation incentive program. In promulgating such regulations, the board shall have the authority to establish an operator qualification system establishing standards and criteria for operators who desire to participate in the remining and reclamation incentives program. Specific purposes of the regulations shall include, but not be limited to, the purposes set forth in sections 4.8, 4.9, 4.10, 4.11, 4.12 and 4.13. (i) The department and its agents and employes shall be authorized to enter any property, premises or place where surface mining activities, including reclamation, are being conducted for the purposes of making such investigation or inspection as may be necessary to ascertain the compliance or noncompliance by any person or municipality with the provisions of the acts and the rules and regulations promulgated hereunder. In connection with such inspection or investigation, samples may be taken of any material for analysis.(j)(1) The Environmental Quality Board is authorized to revise the department's existing regulations to establish technology-based effluent limitations for classes or categories of post-mining discharges emanating from or hydrologically connected to a surface mining activity site that has achieved Stage II reclamation standards and that the department determines can be adequately treated using passive treatment systems.(2) Within twelve (12) months of the effective date of this act, the department shall propose regulations to the Environmental Quality Board for those post-mining discharges with:(i) a pH which is always greater than 6.0 and an alkalinity which always exceeds the acidity; or(ii) an acidity which is always less than one hundred (100) milligrams per liter, an iron content which is always less than ten (10) milligrams per liter, a manganese content which is always less than eighteen (18) milligrams per liter and a flow rate which is always less than three (3) gallons per minute.(3) Regulations established under this subsection shall contain technology-based effluent limitations established using best professional judgment as authorized by this act, the act of June 22, 1937 (P.L. 1987, No. 394), known as "The Clean Streams Law," or the Federal Water Pollution Control Act (62 Stat. 1155,33 U.S.C. § 1251 et seq.) and the regulations promulgated under those acts.(4) In addition to the requirements of this subsection, post-mining discharges shall comply with 25 Pa. Code Chs. 92 (relating to national pollutant discharge elimination system) and 93 (relating to water quality standards).(5) A person may petition the Environmental Quality Board for rulemaking under this subsection.1945, May 31, P.L. 1198, § 4.2, added 1956, May 10, P.L. (1955) 1562, § 2. Amended 1961, Sept. 2, P.L. 1210, § 2; 1963, July 16, P.L. 238, § 2; 1968, Jan. 19, P.L. (1967) 1012, § 3; 1968, Dec. 10, P.L. 1167, No. 370, § 4; 1971, Nov. 30, P.L. 554, No. 147, § 7; 1972, Dec. 28, P.L. 1662, No. 355, §1; 1977 , July 25, P.L. 99, No. 36, § 2, imd. effective; 1978 , Mar. 3, P.L. 10, No. 5, § 1, effective in 60 days; 1980, Oct. 10, P.L. 835, No. 155, § 6, imd. effective; 1992, Dec. 18, P.L. 1384, No. 173, § 5, effective in 60 days; 1996, May 22, P.L. 232, No. 43, § 3, effective in 60 days. Affected 2000, Dec. 20, P.L. 980, No. 138, § 2, effective in 60 days.